Ms Thuto & Mrs Keevil · Rita Keevil Education B.A. (University of Cape Town) 1978 LL.B (University...
Transcript of Ms Thuto & Mrs Keevil · Rita Keevil Education B.A. (University of Cape Town) 1978 LL.B (University...
Ms Thuto & Mrs
Keevil
The Law in Botswana Regarding,
Marriage , Divorce & Children
20TH ANNUAL FAMILY LAW
CONFERENCE CAPE TOWN 2017
Rita Keevil
Education
B.A. (University of Cape Town) 1978
LL.B (University of Natal) 1981
Diploma Advanced Property Practice (Milpark
Business School) 1998
Diploma Trial Advocacy Instruction (University of
Washington) 2011
Professional Qualifications
Admitted as an Attorney of the High Court of
Botswana 1987
Fellow of the Botswana Institute of Arbitrators
Professional Memberships
Member of the Botswana Law Society
Patient “Pepsi” Thuto
Education B.L. (Hons) University of Zimbabwe1986
LLB University of Zimbabwe 1987
Certificate in Mediation & Arbitration (IMMSA) 1995
Certificate in Trial Advocacy Instruction (S.A.) 2001
Diploma Trial Advocacy Instruction (University of
Washington) 2011
Professional Qualifications Admitted as a legal practitioner (Attorney, Notary and
Conveyancer) in the High Court of Zimbabwe, January
1988
Admitted an Attorney, Notary and Conveyancer of
Botswana, May 1991
Professional Memberships Member of the Botswana Law Society
MARRIAGES IN BOTSWANA
CHANGE OF MARRIAGE REGIMES
A couple may change their marriage regime from “in community of
property” to “out of community of property” or vice versa, twice.
STATUTES
Ante-Nuptial Contracts Act
Married Persons Property Act (New)
Abolition of Marital Powers Act
Marriage Act
Affiliation Proceedings Act
Types of Recognised
Marriages
• Customary Marriages generally take place in customary
courts (Kgotlas) where lawyers have no access.
CUSTOMARY MARRIAGES
ISLAMIC AND HINDU MARRIAGES
Section 23 of the Marriage Act; Registration of Customary, Muslim, Hindu and other religious
marriages
(1) Parties to a Customary, Muslim, Hindu and other religious marriages shall
ensure that their marriage is registered within two months of contracting such marriage.
(2) Either spouse may apply to the Registrar of Marriages for the registration of
his marriage and must furnish him with the prescribed information and any additional
information which the Registrar may require in order to satisfy himself as to the
existence of the marriage.
(3) The Registrar shall, if satisfied that the spouses concluded a valid Customary,
Muslim, Hindu or other religious marriage, register the marriage by recording the identity
of the spouses, the date of the marriage or property in cash or in kind which a
prospective spouse undertakes to give to the other prospective spouse's family in
consideration of such marriage (referred to as "bogadi" in vernacular) and any other
particulars prescribed.
(4) Any person, who contravenes the provisions of subsection (1) shall be guilty
of an offence and liable to a fine not exceeding P800 or to imprisonment for a term not
exceeding one year, or to both.
DIVORCE
Procedure
• Divorce must be instituted by way of action.
• Divorce can only be instituted in the High Court,
which has original jurisdiction
• Service of divorce summons outside the jurisdiction
must be made by way if edictal citation. (Order 10 High
Court Rules)
• Service of divorce summons MUST be personal.
• .
- Jurisdiction is two pronged;
1. Residence
2. Domicile
- Domicile must be established in order to establish
jurisdiction.
- A court will have the jurisdiction to preside over a divorce of
a foreign couple where either spouse has been
continuously resident for a period of at least three years
- Couples married in Botswana must have been married for
at least two years before divorce proceedings can be
instituted.
Jurisdiction
Proof of Irretrievable Breakdown
- Botswana is still very much a fault based system;
irretrievable breakdown of the marriage must be
proven.
- Four grounds for proving irretrievable breakdown of the
marriage:
1. Unreasonable behaviour
2. Adultery
3. Desertion for a period in excess of two years
4. Living apart for a period in excess of two years
Applying Foreign Law
• Where jurisdiction has been established by the court to
entertain the divorce of a foreign marriage, reference
must be made to the law of the country where the couple
was domiciled at the time of their marriage.
• Such foreign law will only be applied in so far as
division of the joint estate of the couple is concerned,
or where either of the spouses claim that they were
never married to begin with.
CHILDREN
Protection of Children
• The High Court is the “Upper Guardian” of all minor children.
• The Children's Act makes provision for ;
“the promotion and protection of the rights of the child; for the
promotion of the physical, emotional, intellectual and social
development and general well-being of children; for the protection
and care of children; for the establishment of structures to provide
for the care, support, protection and rehabilitation of children”
Travel
• Travel Affidavits- Difficulties often arise
when one parent refuses to sign travel
documents
Adoption
• The Magistrate Court is referred to as the Children's Court when
it hears cases involving children. The Magistrate Court gives
priority to children's cases, therefore these types of cases do not
queue with other matters before the court.
• The Magistrate court has the authority to grant an adoption.
• While the court is under no legal obligation to involve social
workers in children's issues, they typically do.
• No person under the age of 25 can adopt, and no person can
adopt a child who is 16 years or older unless both parents are at
least 25 years older than the child. (Subject to 2 exceptions)
Abduction
• Child abduction has increased in recent years in
Botswana, mostly due to more incidences of
marriage breakdown, faster and easier means of
communication between countries, and a larger
number of marriages of person of different
nationalities.
• When the marriage breaks down , problems arise
when each parent wants sole custody.
• In some cases one of the parents will relocate to
another country with the children without the
consent or prior knowledge of the other parent, and
despite a custody order granted to the other
spouse.
Retrieval of an Abducted Child
• Botswana is not a signatory to the Hague Convention.
• Therefore the best way to try and retrieve an abducted child
is to obtain a court order in Botswana, for the return of the
said child or children, and then proceed to try and get that
court order recognised in country which the children reside.
• Botswana needs to embrace international legal codes on
child abduction. These Codes must address the issues of
jurisdiction and the recognition and enforcement of foreign
custody orders and the mechanism for the speedy return of
abducted children to their lawful custodians.
THE END
THANK YOU!
Ms Thuto & Mrs Keevil